Saturday, January 30, 2010

Last summer, when Kiwi Camara and Joe Sibley took over the defense of Jammie Thomas-Rasset, they vowed not only to get her off the hook, but to launch a counter-attack to "get the $100 million that [the labels] stole" in the course of their litigation campaign against individual peer-to-peer users. They, along with Harvard Law School professor Charles Nesson, would do that, Camara told Ars Technica, by "fil[ing] a class-action lawsuit against the industry at some point after the conclusion of the Thomas-Rasset case in an effort to make the labels pay back all monies taken in from settlements with file-sharers." Well, the Thomas-Rasset case isn't over yet (and may never be), and the Camara/Sibley/Nesson class action has yet to materialize (though Camara told Ars last week that it's still coming).

But little noticed is that a whole separate putative class action lawsuit attacking the labels' litigation tactics has been winding its way through federal court in Portland, Oregon. And due to a series of rulings over the past few months, the case appears to be on its last legs.

The case, Andersen v. Atlantic Recording Corp., started out routinely. As with all of their lawsuits, the labels first had to identify the proper target. They began only with an IP address and the KaZaA user ID "gotenkito," detected by investigators at MediaSentry, who spied this user "sharing" 1,288 song files. The labels then sued the "Doe" assigned to that IP address, and issued a subpoena to Verizon, the ISP that provided the Internet service to that subscriber. Verizon coughed up the name Tanya Andersen, and the labels filed a new lawsuit against her in her home state of Oregon.

Unlike the vast majority of defendants, Andersen didn't settle. She's "absolutely, positively, 100% innocent," her attorney Lory Lybeck told me back in November, when I wrote about this case for Billboard. The labels took depositions and examined her computer, but they couldn't definitively tie Andersen to the illegal downloading. And so they dropped the case, just before their opposition to her summary judgment motion was due. The judge, obviously miffed that the labels had put Andersen through the wringer but couldn't prove their claims, awarded her $103,175 in attorneys' fees -- one of only two cases in which the labels have had to make such payments.

But Andersen still wouldn't let go. She sued the labels (plus the RIAA and MediaSentry) right back, alleging a massive conspiracy to abuse the federal courts by suing innocent individuals with no probable cause. And she sought class action status, purporting to represent all of those "who were sued ... or were threatened with suit by [the major labels], for copyright infringement . . . who have not engaged in violation of copyright laws." Andersen's theory was that an IP address coupled with a folder "sharing" songs is insufficient evidence even to file a complaint, let alone prevail. (Here's the operative Fourth Amended Complaint.)

Judge Anna Brown dealt a major blow to Andersen's case last November 12, when she granted summary judgment for the defendants on all claims arising out of the allegedly wrongful investigation and initiation of their claims against her in the underlying lawsuit. The evidence gathered by the labels and MediaSentry "was strong enough to support 'a chance' that the defendants had correctly identified an individual engaged in wrongful activity," she wrote, citing the relevant legal standard. And more broadly, "The court ... concludes on this record that plaintiff has not established defendants filed a series of lawsuits based on a policy of initiating legal proceedings without regard to the merits," wrote Brown. Still left, however, were claims that the labels had continued to maintain their suit past the point they allegedly knew they were targeting the wrong person -- in other words, that they should have dismissed sooner.

The labels won another round earlier this month when Judge Brown denied Andersen's motion for class certification -- eliminating, at least for now, the possibility of a huge judgment against them -- and also rejected her attempt to file a Fifth Amended Complaint to add new class representatives. Andersen is seeking to file a new motion for class certification (the motion for leave has been filed under seal), presumably based on a purported class of individuals against whom the labels continued to litigate after they should have dropped the cases. I'm extremely skeptical that a court could properly certify such a class; individualized issues of what happened in each particular case would certainly predominate, making a class action a poor vehicle for litigating such claims. And the labels have asked for permission to file a summary judgment motion on Andersen's remaining claims, for abuse of process and negligence under Oregon law, related to their conduct after their suit against Andersen was filed. In their preview of their actual summary judgment arguments, the labels argue, persuasively in my view, that they were acting within the law to protect their copyrights, and cannot be held liable for exercising their right to litigate (even if they ultimately lost). (And even if the labels were to lose on the remaining claims, it's unclear what damages Andersen could recover, given that she has already been awarded her attorneys' fees in the underlying case.)

So could Camara and his team file a separate class action based on a similar theory, even if, as I expect, the labels ultimately prevail in the Andersen case? My understanding is that the answer is yes; principles of res judicata or collateral estoppel wouldn't bar new plaintiffs from bringing the same claims. But the Andersen experience, and the precedent it has established, very likely would lead to the same result. And it's hard to imagine the attorneys would want to take on such a case, while they are likely not being paid along the way, faced with such uncertain prospects of recovery.

Friday, January 29, 2010

Political uses of copyrighted material are becoming more and more common. Some are fair uses; some aren't. Check out this new video from a conservative group called "American Future Fund," which mocks Sen. Ben Nelson (D-NE) for his efforts to justify the so-called "Cornhusker kickback" offered to secure his support for health care legislation:

Remember when we were told how peer-to-peer networks would be used for benevolent purposes, like making available the King James Bible, the works of Shakespeare, and The Odyssey? (See n.3.) Well, not so much. From a "census" of files available on BitTorrent conducted by Princeton University student Sauhard Sahi and Professor Ed Felten, a frequent critic of the entertainment industry and its copyright enforcement efforts:

Overall, we classified ten of the 1021 files, or approximately 1%, as likely non-infringing, This result should be interpreted with caution, as we may have missed some non-infringing files, and our sample is of files available, not files actually downloaded. Still, the result suggests strongly that copyright infringement is widespread among BitTorrent users.

Wednesday, January 27, 2010

The record label plaintiffs have offered to settle the Jammie Thomas-Rasset case for a $25,000 donation by the defendant to "an appropriate charity benefiting musicians" and vacatur of the court's Jan. 22 order remitting the jury's award of $80,000 per song down to $2,250. The letter from plaintiffs' counsel Timothy Reynolds also indicates that if a settlement is not reached, the labels intend to reject the remitted amount, which would send the case back to the Minneapolis courtroom of Chief Judge Michael Davis for a third trial on damages.

But less than an hour after receiving the offer, Thomas-Rasset's attorney Joe Sibley rejected the offer -- and indeed any offer that involves the defendant paying money:

Jammie will not accept anything offer that requires her to pay money to or on behalf of the Plaintiffs. Thus, your offer of settlement is rejected.

Added Sibley in an email to C&C:

[A]s our response makes clear, Jammie is standing on principle here, and will not accede to payment demands that the RIAA is making thru an unconstitutional statutory scheme (that they lobbied for the creation of) and we will ride this train to it's appellate end no matter how many future remittiturs are rejected.

In response to Thomas-Rasset's rejection of the offer, RIAA spokeswoman Cara Duckworth confirmed that the labels will reject the remitted award of $54,000 and proceed to a third trial:

It is a shame that Ms. Thomas-Rasset continues to deny any responsibility for her actions rather than accept a reasonable settlement offer and put this case behind her. Given this, we will begin preparing for a new trial.

After two unprecedented trials and a wave of national attention, there should be no doubt that illegal downloading is wrong and that there should be real consequences for those who ignore the law. The message is resoundingly clear. This case helped affirm the important principles of accepting responsibility for one's actions and compensating the people who create great music and bring it to the public. We've accomplished what we set out to do, and now we seek to resolve this matter fairly and expeditiously. We hope Ms. Thomas-Rasset accepts our offer.

Under the current schedule, the labels must inform Judge Davis of their choice between the reduced award or a third trial by this Friday, though they have asked for a ten-day extension. But given Thomas-Rasset's rejection of the offer, the extra time may no longer be necessary. Update: the deadline has been extended until Monday, February 8.

Tuesday, January 26, 2010

When Chief Judge Michael Davis slashed the jury's award against Jammie Thomas-Rasset from $80,000 to $2,250 per song, he gave the record label plaintiffs two choices: 1) accept the reduced award; or 2) return to Minnesota for a new trial on damages. And he gave them seven days to tell him their decision. Well, it looks like they're having a bit of trouble making up their minds, and are now asking for an additional ten days to mull it all over:Plaintiffs' request for extension re remittitur decision

Interestingly, for reasons I explained yesterday, plaintiffs faced with such a choice almost never choose a new trial. According to this academic study of cases from 1991-2000, "when judges remitted jury verdicts, in 98% of the cases the plaintiff either accepted the remittitur (in 71% of the cases) or settled the case (in 27% of the cases). In only 2% of the cases did the plaintiff take the new trial." The labels' motion indicates that Thomas-Rasset does not oppose the request for an extension.

Update: the court has granted the motion, giving the plaintiffs until Monday, Feb. 8 to make their choice.

A judge permitted the disclosure for the first time Tuesday that the artist known for his Barack Obama "HOPE" image is under criminal investigation, though details of the probe were not divulged.

U.S. District Judge Alvin K. Hellerstein mentioned the grand jury probe in a handwritten note denying a request by a lawyer for artist Shepard Fairey that a hearing relating to a copyright lawsuit they brought against The Associated Press be closed.

***

The U.S. Attorney's office had a grand jury begin an investigation after Fairey said he erred about which AP photo he used as the basis for "HOPE" and had submitted false images and deleted other images to conceal his mistake.

Meir Feder, a lawyer for Fairey, asked for secrecy in a letter to the judge, arguing that a public hearing "would risk compromising the confidential nature of the criminal investigation."

At the hearing, which was open to the public, Feder asked for a six-month delay in the civil case. He said Fairey had been instructed by his criminal lawyer to invoke the Fifth Amendment if asked questions at a deposition.

Hellerstein denied the request, noting that "this whole thing's going to be wrapped up by the end of spring."

***

"Credibility is probably the most significant issue," the judge said. "Credibility is a very important factor and you can't go into credibility without going into the destruction of evidence."

Feder disagreed, saying, "Credibility is not the most important issue."

Having the judge declare that "[c]redibility is probably the most significant issue" cannot bode well for Fairey. But the civil copyright case may now be the least of his worries.

Monday, January 25, 2010

The more I think about Chief Judge Michael Davis' order reducing the jury's award in the Jammie Thomas-Rasset case from $80,000 per song down to $2,250, the less I can make sense of it.

The issue currently causing me the most befuddlement is the choice the order presents to the record label plaintiffs:

Plaintiffs are directed to either accept the remittitur or to schedule a new trial on the issue of damages. Plaintiffs shall file a notification of their decision regarding remittitur no later than seven days from the date of this Order. The Court will defer amending the Judgment pending notification of Plaintiffs’ position with regard to remittitur.

I get what happens if the labels accept the reduced award: the case is over (other than the possibility of appeals, which is a whole other complicated issue). But I'm baffled as to how things would play out if the labels opt for a new trial on damages. Keep in mind that the court, in its Jan. 22 order, has already determined that $2,250 per work "constitutes the maximum amount a jury could reasonably award to both compensate Plaintiffs and address the deterrence aspect of the Copyright Act." Order at 25-26. So what happens if there's a new trial and the jury again comes back with an award greater than $2,250 per song? (Note that all three juries to have sat in individual peer-to-peer cases have awarded much higher than that: $9,250 (Thomas-Rasset #1); $80,000 (Thomas-Rasset #2); and $22,500 (Joel Tenenbaum).) Does the court then grant another remittitur, giving plaintiffs the same choice? Can this go on ad infinitum? Is this a real-life Groundhog Day?

And from the plaintiffs' perspective, what's the point of a new trial anyway? If a new jury awards greater than $2,250 per work, presumably Judge Davis will remit again; he's already said $2,250 is the upper limit, and its difficult to imagine that any facts presented at a new trial would cause him to alter his view. And if a jury awards less than that, then the labels are worse off from a financial perspective -- though I suppose that would mean that, unlike if they accept the reduced award, they could finally appeal the remittitur ruling. SeeDonovan v. Penn Shipping Co., 429 U.S. 648 (1977) (noting "settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict.").

And how would a new damages trial actually work? Would the judge instruct the jury that the maximum they can award is $2,250 per work? Would such an instruction -- which seems to fly in the face of the statute, which permits statutory damages of up to $150,000 per work -- be allowed? And if the plaintiffs knew that the instruction would indeed restrict the jury to a maximum award of $2,250 per work, then what incentive would they have to opt for a new trial at which they could only end up with a lower award than the one placed on the table by the court?

Readers are invited to attempt to cure my befuddlement in the comments.

Update: thanks to readers/commenters who have alerted me to academic treatments of this very subject. It turns out that people who have spent much more time thinking about this issue than I have come to the same conclusion, namely that it makes little or no sense for a plaintiff confronted with the choice between a reduced award and a new trial to opt for the new trial. As professor Suja Thomas explains in her article Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment, 64 Ohio St. L.J. 731 (2003):

Indeed, this article's study of remittitur in the federal district courts for the ten years from 1991 through 2000 demonstrates that remittitur effectively eliminates the plaintiff's constitutional right to have damages tried by a jury because the alternative of a new trial is not truly an option for the plaintiff. The study found that when judges remit-ted jury verdicts, in 98% of the cases the plaintiff either accepted the remittitur (in 71% of the cases) or settled the case (in 27% of the cases). In only 2% of the cases did the plaintiff take the new trial. It is noteworthy that federal judges use this unconstitutional practice to reduce uncertain damages, damages that cannot be calculated with mathematical certainty, for example, emotional distress damages. Of the remitted cases studied, 68% included un-certain damages as a component, 46% of which were emotional distress damages and 50% of which were in civil rights cases. In this subset of cases which involve uncertain damages, the study again shows that the new trial option is illusory. In 98% of these cases, the plaintiff accepted the remittitur or settled.

Given that a committed plaintiff is faced with the possibility of an unending sequence of damage trials until a jury is found that will return a damage award low enough to please the judge, it is not surprising that many plaintiffs choose to settle or to accept the remittitur, whether or not they perceive it as fair. The decision analysis shows that the choice of a new trial is only theoretical. As a practical matter, the judge imposes a damage award smaller than that awarded by the jury, and the plaintiff has little choice but to accept whatever the judge says.

Sunday, January 24, 2010

Since juries last summer returned the huge verdicts against Jammie Thomas-Rasset and Joel Tenenbaum for their use of peer-to-peer networks to download and "share" music, attention has been focused on the question whether the massive awards ($1.92 million and $675,000, respectively) were unconstitutionally excessive. That is, did these awards of statutory damages pass muster under the Supreme Court's limits on punitive damages established in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), or the more deferential standard in St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919)?

It was thus a bit of a surprise that last week's decision by Chief Judge Michael Davis of the District of Minnesota reducing the Thomas-Rasset award by 97 percent -- from $80,000 per song down to $2,250 -- rested on the common-law doctrine of remittitur, avoiding the constitutional issue altogether. But did the court actually have the authority to employ remittitur to reduce an award of copyright statutory damages within the range established by 17 U.S.C.§ 504(c)? I admit I haven't done much independent research on this issue. But having read the cases cited in support of the authority for remittuitur here, in both Thomas-Rasset's briefs and the court's order, I was struck by the extremely thin support for the notion that a court may remit an award of copyright statutory damages within the statutory range.

Thomas-Rasset's 13-page post-trial motion to reduce the award devotes a single paragraph to the issue. See Br. at 10. This paragraph cites two cases regarding remittitur, and highlights their holdings that "Remittitur is appropriate where the result on a verdict 'is monstrous or shocking.'" Id. (citing Thorne v. Welk Investment, Inc., 197 F.3d 1205, 1211–12 (8th Cir. 1999); Jenkins v. McLean Hotels, Inc., 859 F.2d 598, 600 (8th Cir. 1988)). But Thorne (a sexual harassment case) and Jenkins (a personal injury case), neither of which involved statutory damages, let alone copyright statutory damages, do not address the issue here: whether, where Congress has established a statutory damages range, and the jury's award falls within it, the court has the authority to reduce an award it finds excessive. The Department of Justice's brief defending the Thomas-Rasset award on constitutional grounds also takes the position that the court has the power to remit on common-law grounds. See Br. at 7-8. DoJ's brief cites a copyright case, Superior Form Builders, Inc. v. Chase Taxidermy Supply Co., 74 F. 3d 488, 496-97 (4th Cir. 1996), in support of this argument. But I think Superior Form Builders is weak authority for this point. First, that case merely seems to assume, but does not actually analyze whether, a judge may reduce a jury's award that falls within the statutory range. And it notes that "if the jury was presented with evidence justifying a finding of willful infringement, it is given broad discretion to award up to $100,000 [then the statutory maximum] for each work copied." Moreover, it declines to reduce the award.

The labels' brief in defense of the Thomas-Rasset award does argue that the court lacks the authority to remit a copyright statutory damages award. See Br. at 21-22. Their argument is that the Supreme Court's Feltner opinion clearly held that the jury -- not the judge -- determines the proper amount of statutory damages within the range established by Congress:

Feltner does not hold nor contemplate that a judge has the right to alter a jury’s statutory damage award if that award falls squarely within the statutory damage range prescribed by Congress. See also SESAC, Inc. v. WPNT, Inc., 327 F. Supp. 2d 531, 532 (W.D. Pa. 2003) (rejecting request for remittitur of statutory damages for copyright infringement because "[t]he court should not interfere lightly with a carefully crafted statutory scheme by substituting its judgment for that of the legislature").

Their brief notes, however, that "Plaintiffs might accept a remittitur under certain circumstances," including adequate recognition of Thomas-Rasset's wrongdoing, in the interest of "finality." Id. at 22-24. Thomas-Rasset's reply brief does not even mention remittitur, focusing solely on the constitutional issues.

Judge Davis' order addresses the issue of his authority to remit on pages 7-8. It does not cite any cases holding that a judge has the power to remit a copyright statutory damages award. Rather, it simply notes Feltner, acknowledges that deference must be paid to the jury's decision, and concludes that "there is no authority for Plaintiffs’ assertion that the Court does not have the power to remit an award of statutory damages." The order then cites Thorne and Corpus v. Bennett, 430 F.3d 912, 917 (8th Cir. 2005) (Section 1983 police excessive force case) as authority for the proposition that a judge may remit a jury's damages award even where the plaintiff has a Seventh Amendment right to a jury trial. (Feltner's holding was based on the Seventh Amendment.) But again, I don't think this answers the question whether a judge has the authority to reduce a jury's award where that award falls within a statutory range specifically spelled out by Congress. Neither Thorne nor Corpus involved a statutory damages range.

The bottom line is that, as far as I am aware, Judge Davis' decision is without precedent; it stands alone as the first and only decision ever to reduce an award of copyright statutory damages, on any ground, common-law or constitutional. I realize it's hard to prove a negative (i.e., that there are no other such decisions), but the failure of either Thomas-Rasset's highly competent attorneys, or Judge Davis, to find one, is telling. See Pls.' Br. at 17 ("In fact, Plaintiffs have not located a single case, in the nine decades since Williams was decided, in which a court relied on Williams to reduce or eliminate an award of statutory damages because of a due process violation. See, e.g., Colleen P. Murphy, Judicial Assessment of Legal Remedies, 94 Nw. U. L. Rev. 153, 202 (1999) (noting that in the context of the Copyright Act, '[n]o reported decision has reduced a litigated award that was within the appropriate statutory range')").

The labels now have some difficult decisions to make. Do they take their $54,000, declare victory, and go home? That might be the best PR move, but it would appear to result in their forfeiting of the right to appeal the damages ruling. SeeDonovan v. Penn Shipping Co., 429 U.S. 648 (1977) (noting "settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict."). Or do they reject it, so that they can argue to the Eighth Circuit that Judge Davis lacked authority to remit? From a long-term strategic perspective, it is surely not helpful to have a case on the books holding that a trial judge does have the authority to reduce a jury's statutory damages award. (Pursuant to Judge Davis' order, the labels have until Friday, Jan. 29 to decide whether to accept the reduced award or head back to Minnesota for a third trial.)

It will also be interesting to see what the labels argue in their brief in opposition to Joel Tenenbaum's motion seeking a reduction in the jury's award against him. Tenenbaum's brief barely even mentions common-law remittitur; it discusses the issue only in a short paragraph at the very end, see Br. at 25-26, which cites two cases, neither of which is about copyright or statutory damages. See Correa v. Hosp. San Francisco, 69 F.3d 1184, 1197 (1st Cir. 1995) (claim under Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd); Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988) (maritime personal injury case). Judge Gertner will surely have read Judge Davis' opinion, and no doubt will be tempted to follow its mode of analysis, i.e., to declare that the award shocks her conscience, and thus to remit on common-law grounds, thus avoiding the constitutional issue. The labels' brief, in which they are likely to try to convince her otherwise, is due this Thursday, January 28.

Update: Thomas-Rasset's counsel Kiwi Camara sent me the following email, which he gave me permission to post here:

Ben:

I read your two blog posts on Judge Davis's order. Another interesting point: we challenged statutory damages as unconstitutional all the way to the minimum. We argued that even if Judge Davis were to remit to the minimum, the resulting statutory damages would still be unconstitutional. See M. at 4.

This means that the RIAA cannot avoid the constitutional issue even if they accept the remittitur. Of course, accepting the remittitur may put them in a better position to defend the constitutionality of the award of statutory damages on appeal since the reduced award is less objectionable than the original award, though still in our view unconstitutional.

Kiwi

Camara also told me that if the labels accept the reduced award, Thomas-Rasset still intends to appeal on the grounds that the award of $2,250 per work is unconstitutionally excessive.

Friday, January 22, 2010

The court in the Jammie Thomas-Rasset case today reduced the jury's award of $80,000 per song to just $2,250, concluding that the "verdict [of] $2 million for stealing 24 songs for personal use is simply shocking." The court grounded its decision to reduce the total award to $54,000 -- slashing the jury's verdict by 97 percent -- in the common-law doctrine of remittitur, thus avoiding the issue whether the jury's verdict was unconstitutionally excessive.Order on Jammie Thomas-Rasset's motion for new trial

Judge Michael Davis of the District of Minnesota gave the plaintiffs (the major record labels) seven days to decide whether to accept the reduced award, or to go back for a third trial, which would be limited to the issue of damages (liability having already been determined in the plaintiffs' favor, and undisturbed by this order). (The first trial ended with a verdict of $9,250 per work (totaling $222,000), but the court granted a new trial after determining that one of his jury instructions was improper.) It's my understanding that if the labels accept the reduced award, they may not then challenge it on appeal. See Donovan v. Penn Shipping Co., 429 U.S. 648 (1977) (noting "settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict").

A similar motion to reduce the jury's verdict of $22,500 per song is pending in the Joel Tenenbaum case. While Judge Nancy Gertner is under no obligation to follow Judge Davis' ruling, it will certainly give her cover, and legal grounds, to similarly remit the award against Tenenbaum, which totaled $675,000.

Tuesday, January 19, 2010

The Department of Justice today defended against constitutional challenge the $675,000 statutory damages award a Boston jury imposed on admitted copyright infringer Joel Tenenbaum, arguing that his use of peer-to-peer networks to obtain free music and distribute it to untold numbers of others caused "great public harm." As it has previously in the Thomas-Rasset, Cloud, and this case (pre-verdict), DOJ argues that the Supreme Court's limits on punitive damages established in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) and its progeny do not apply in the context of statutory damages, where the "extremely deferential" standard of St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919) applies:

The application of the Copyright Act’s statutory damages provision in this case withstands constitutional scrutiny under the test adopted by the Supreme Court in Williams. In enacting the current statutory damages provision of the Copyright Act, Congress has given such due regard to the public’s interests, the opportunity to repeatedly commit this statutory violation, and the need to ensure adherence to the law. Id. at 67. Congress has established a regime to protect intellectual property, with origins that date back to before the beginning of the Republic. The current damages range provides compensation for copyright owners because, inter alia, there exist situations in which actual damages are hard to quantify. Furthermore, in establishing the range, Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe they will go unnoticed. The harms Congress sought to address, moreover, are not negated merely because an infringer does not seek commercial gain. Accordingly, the statutory range specified by Congress for a copyright infringement satisfies due process.

After a weeklong trial last July, a federal jury in Boston found Tenenbaum, a Boston University physics grad student, liable for willfully infringing 30 of the major record labels' copyrights by downloading and distributing them over the KaZaA peer-to-peer network, and imposed statutory damages of $22,500 per work (out of a maximum $150,000 under the statute). On January 4, Tenenbaum filed a constitutional challenge to the award, arguing that it violated his right to due process. The labels' response is due January 28.

As it did in its Thomas-Rasset brief, the government argues here that, notwithstanding the statutory range set forth in the Copyright Act, the court retains discretion to remit the award under common law principles. However, DOJ cites no copyright statutory damages cases in support of this argument, and in fact the labels argued in their brief in defense of the Thomas-Rasset award of $1.92 million ($80,000 per work) that a court does not have the authority to reduce a jury's award of statutory damages under the common law.

Saturday, January 9, 2010

Back on September 23, 2009, ACORN and two former employees filed suit against the young filmmakers who videotaped Baltimore employees of the community organizing group dispensing advice to a fake pimp and prostitute, as well as against the web site that publicized the videos, alleging violations of Maryland's law against surreptitious audio recording. At the time, I explained why I think the suit is doomed, as did others.

So what has happened in the three months and 17 days since the suit was filed in the Circuit Court for Baltimore City? Absolutely nothing. The plaintiffs have not even bothered to serve the complaint on the defendants, and thus there have been no hearings, no motions, no discovery -- nothing. I have zero experience litigating in Maryland courts, but my understanding is that service generally must be made within 60 days, though that is "renewable...on written request of the plaintiff." Maryland Rule of Civil Procedure 2-113. It's not as if the plaintiffs can't locate the defendants; what appear to be their home addresses are listed in the caption of the complaint.

So why would ACORN file such a lawsuit if they're not even bothering to prosecute it? Put their tormenters on the defensive. Make them spend money on lawyers. Chill further exercise of their First Amendment rights. Deter others from taking on the organization.

All of which raises the question: Was this a real lawsuit? Or just a press release on pleading paper?

In recent years, as discussion about copyright law has moved from the province of practitioners and academics to anyone with an Internet connection, numerous myths about the subject have emerged. One is that a "DMCA notice" is the universal means for addressing alleged web-based infringement. It's not. A DMCA notice is a specific type of communication, appropriate only for combating specific types of infringement. Sending such a notice in the wrong circumstances won't solve your legal problems, and will only make you look foolish.

Szukalski apparently wanted Frey to remove the altered version of the photo, so he sent what purports to be a DMCA notice. But, even assuming that Szukalski has a valid copyright claim (more on that dubious notion below), a DMCA notice is entirely inappropriate for these circumstances. Szukalski's notice cites Section 512(c)(3) of the DMCA. Section 512(c)(1) provides for a safe harbor from claims of "infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider," if the host follows certain steps, including promptly removing allegedly infringing material identified in a notice with the information listed in Section 512(c)(3). But the situation here does not involve "storage at the direction of a user"; it involves Frey himself making a copy of the photo, and posting it to his blog. If Frey infringed Szukalski copyright (again, more on that below), he is simply liable; he can't benefit from the DMCA's safe harbor. And Szukalski's procedurally correct move would either be: 1) send an old-fashioned cease-and-desist letter; or 2) sue Frey for copyright infringement. (There's no requirement to send any sort of notice before suing, though of course it's usually desirable to resolve things short of litigation.)

There's an additional reason Szukalski's purported DMCA notice was improper: such notices are effective only if sent to a site's registered DMCA agent. See 17 USC § 512(c)(2). Patterico.com has not registered such an agent, and thus, even if this incident did involve user-posted material, the DMCA safe harbor would not protect it from copyright claims. Sending a DMCA notice, which sets in motion a process for the site to lose the safe harbor if it doesn't remove the offending material, to a site that isn't even eligible for the safe harbor because it has no DMCA agent and so is completely ineligible for the safe harbor, is a fool's errand.

OK, enough about procedure. What about the merits of Szukalski's copyright claim against Frey? I think Frey's posting of the altered version of Szukalski's photograph is a classic non-infringing fair use. He posted it in the course of a lively political discussion about the allegedly racist nature of the photo, and other bloggers' interpretation of it. And the only way to have a truly effective discussion about such matters was to post the photo itself, so that readers could see what he was talking about, and judge for themselves. This is a paradigmatic example of the kind of "criticism, comment, [and] news reporting" at the core of fair use (and the First Amendment). It's entirely understandable that Szukalski doesn't like the fact that his photo was altered, and used in such an offensive way. But once that happened, he can't use copyright law to suppress discussion of what occurred.

But what about the people who originally altered Szukalski's photo or who (unlike Frey) copied and distributed it simply because they liked whatever message it conveyed? Were they engaged in fair use? I highly doubt it. If they wanted to communicate that Barack Obama should be shining Sarah Palin's shoes, they could license the photo(s) they needed, or create their own. But why should they have the right to take Szukalski's work, without compensation, just "to get attention or to avoid the drudgery in working up something fresh"? Campbell v. Acuff-Rose, 510 U.S. 569 (1994). People have the right to be racist. But they don't have the right to infringe others' copyrighted works to promulgate their message.

A recently-released exchange of letters between the parties in the Viacom v. YouTube copyright suit has led to reports that "Both sides have asked a federal court for summary judgment." That's jumping the gun. Neither party has yet filed summary judgment motions. As the letters make clear, all that has happened is that the parties have informed Judge Stanton (as is required by the local rules) that they intend to move for summary judgment, and provided very brief summaries of the grounds on which they will move. Judge Stanton directed the parties to come up with a briefing schedule, subject to court approval. I suspect we will see the motions themselves sometime in the next few months.

Believe me, when the parties actually do move for summary judgment, we will know it; the filings will include hundreds, maybe thousands, of pages of evidence in support of their arguments about the applicability vel non of the DMCA's safe harbor for "infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." 17 U.S.C. § 512(c)(1). And we'll also get a look at evidence reportedly showing that YouTube employees themselves uploaded infringing videos to the site. Such activity would not be protected by the safe harbor, because it was done not "at the direction of a user" but by the operators of site itself.

Given that a subsidiary of my current employer is a party to this suit, I'm not going to comment in any detail, other than to note the court's holdings that: 1) any injury Real allegedly suffered resulted from its decision to distribute a product in likely violation of the law; and 2) the studios had every right under the Noerr-Pennington doctrine to work together in their litigation against Real:

Real did not believe a license was required and indeed launched its product without having obtained any license. The distribution of its product has been disrupted only by the entry of a TRO, and later a preliminary injunction, by this court. Real’s injury resulted from that relief, which was necessitated by Real’s own possibly unlawful conduct. To the extent the Studios cooperated with one another and the DVD CCA to petition this court for relief, such cooperation unambiguously falls within the Noerr-Pennington exception to liability under the antitrust statutes. See generally Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1006 (9th Cir. 2008).

Monday, January 4, 2010

Joel Tenenbaum today filed a motion seeking to reduce the award of $675,000 in statutory damages a Boston jury imposed on him last July after finding that he willfully infringed 30 songs by downloading and "sharing" them over the KaZaA peer-to-peer network. The motion argues that the award of $22,500 per work violates the U.S. Constitution's due process clause because it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable" (citing St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 67-68 (1919), as well as violative of the limits on punitive damages set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).Defendant's Motion for New Trial or Remitittur

Prior to trial, Tenenbaum made similar arguments, some of which Judge Nancy Gertner already rejected. Specifically, in her June 15, 2009 order, Judge Gertner rejected Tenenbaum's arguments that statutory damages apply only to commercial infringement, as well as his argument that they are criminal in nature. She also included this passage, which I think gets at the heart of the matter:

In deciding the questions presently before the Court, the issue is obviously not whether the instant litigation is good policy. There are many civil claims and criminal prosecutions that may well be entirely constitutional -- but, at the same time, entirely inequitable, inappropriate, or wrong-headed. The Court’s responsibility here is only to consider the former, not the latter.

It should be noted that the Department of Justice has already weighed in in this case in defense of statutory damages (though before the verdict), as it did in the similar Thomas-Rasset case (after the $1.92 million verdict there). It seems likely that DoJ will file a brief in support of the Tenenbaum award.

The arguments regarding the constitutionality of large statutory damages awards should be familiar to most readers by now; for both sides, I recommend reading this online debate I did a few months ago with Professor Pam Samuelson of Berkeley Law School. While I'm not going to hazard a prediction as to what Judge Gertner will do, I do think it's quite telling that this brief does not cite a single case where a court has held that an award of statutory damages is unconstitutional, either under Williams (which upheld the statutory damages award at issue) or Gore. And that's no surprise; as far as I'm aware, no such case exists.

Tenenbaum also seeks a new trial, challenging the court's grant of summary judgment on fair use, and arguing that the court improperly excluded a portion of a letter in which he offered to settle the case for $500 [amounted corrected from $5,000]. On fair use, Tenenbaum argues that it was fair use for him to get songs for free in 2004 (when his infringement was detected by the labels) because the labels didn't release them in his preferred DRM-free format until 2007. I know of no legal support for such an argument; copyright owners have no obligation to offer their works at all (let alone in a particular format), on pain of losing their exclusive rights.

As for the letter, it's a bit hard to judge exactly how or why the court ruled, since the discussion occurred largely at sidebar. But I can address the brief's argument that "Plaintiffs did their best throughout the trial to make the defendant appear to the jury to be a liar [and] a perjurer." Br. at 8. That may be true, but Tenenabaum's counsel, Harvard Law School Professor Charles Nesson, did little to dispel that conclusion. Nesson actually asked Tenenbaum on the stand, "Why did you lie at that point?" -- effectively a concession that his client did lie. And Tenenbaum admitted it, answering, "It was kind of something I rushed through.... It's what seemed the best response to give." If the jury got the impression that Tenenbaum was "a liar [and] a perjurer," it was, at least in part, because he and his counsel essentially admitted it.

Lastly, take a look at the counsel listing on the first page of the motion. The Boston law firm assisting pro bono in Tenenbaum's case, Feinberg & Kamholtz, is listed as "FEINBERF & KAMHOLTZ." I'm sure this seems trivial to non-lawyers (and even some lawyers), but it matters. It signals sloppiness to the judge and her clerks. It's only natural for them to think, either consciously or not, "If they can't even get the name of the firm right, what else did they get wrong? Did they cite correctly to the record, and the cases? Can I trust when they say something is on page 472? Can I trust when they say that Williams, or Gore, stands for X?" This case is not going to turn on a typo. But mistakes like this are decidedly unhelpful to a party's cause.

As I wrote on Dec. 21, curious about the quality of the merchandise for sale on the street, I shelled out five bucks for copy of the movie "District 9," which was still days away from being available in your local retail store.

As I've been informed, quite properly, by readers in and around the movie industry, that casual act made me part of a global problem that is killing jobs and eliminating opportunities for creative people everywhere.

Consider this the other side of that column.

What I expected to find in the case I bought from a street vendor was a traditional crummy camcorder copy, providing the view and sound of a screen somewhere on far the horizon but of the audience too, chattering, coughing, and getting up to go to the bathroom. Such low-quality copies are among the largest single categories in the international film piracy trade, especially overseas, though digital copies or online files made from stolen prints or discs are posing an increasingly serious threat.

Indeed, but what I got was a high-quality digital copy with up-to-date trailers, a navigable menu that (mostly) worked and even some special features. Plainly the source was a DVD diverted from the retail stream -- stolen from a warehouse, perhaps, or slipped to a gang of copiers by a confederate at a DVD factory.

In other words, the pirates have really got their act together. Product like this has a real, and frightening, capacity to take a bite out of the legitimate retail market.

Hiltzik correctly notes that claims of piracy losses are imprecise (as are estimates of any illicit activity). But there is no question that sales of pirated DVDs represent sales taken from the legitimate market. By definition, the purchasers of pirated DVDs (as opposed to some portion of Web pirates) are willing to pay money for product, and a dollar paid to the criminals who sell pirated discs is a dollar taken away from those who worked on and invested in the film.

One last point: the record $10 billion-plus earned at the US box office in 2009 is certainly to be celebrated, and is obvious evidence that piracy has not killed the theatrical business, whose unique experience can't be replicated in all but the fanciest living rooms. But the biggest film piracy threat has always been to the home entertainment (not theatrical) sector, where revenues are "plunging." The last thing the home entertainment business needs is for piracy, via hard goods or the web, to provide an accessible alternative to legal product.

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About This Blog and Me

Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.

Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.

This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.

Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.

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